LIMITATION FOR FILING APPEAL BEFORE TRIBUNAL

[Mr. M. GOVINDARAJAN]

INTRODUCTION:

Section 35B of the Central Excise Act, 1944, Section 129A of Customs Act, 1962 and Section 86 of the Finance Act, 1994 provides for filing appeal before the Appellate Tribunal by the aggrieved party against the order passed by the lower authorities. The said appeal shall be filed in the prescribed form along with fee and the same should be filed within three months from the date of communication of the order against which the appeal is to be filed by the aggrieved party. The Tribunal may condone the delay of filing appeal after the limitation period if the Tribunal satisfies that the appellate was prevented from sufficient case from filing appeal within the limitation period. For getting delay condoned the appellant is to file an application for condoning the delay explaining the reasons for filing the appeal belatedly. Some of the case laws relating on the subject are discussed in this article.

DELAY DUE TO FILING OF WRIT PETITION:

In ‘MEDIWIN PHARMACEUTICALS Versus UNION OF INDIA’ – 2007 (10) TMI 421 - GUJARAT HIGH COURT the petitioners challenged under Article 226 of the Constitution in the order passed by the Commissioner of Central Excise (Appeals). The High Court held that there is an alternative remedy available and the writ petition is not maintainable. However the High Court gave the liberty to the petitioners to challenge the impugned order of the Commissioner (Appeals) before the Appellate Tribunal. The petitioners received the order of the Commissioner (Appeals) on 20.06.2007. The petitioners filed the present petition before the High Court during July 2007. The period of limitation for filing before the tribunal has gone out. For this the High Court directed the petitioners to file appeal before the Tribunal within one month from the date of order of the High Court and the Tribunal shall hear and decide the appeals on merits without raising the bar of limitation.

ABSENCE OF AUTHORIZATION:

In ‘Commissioner of Customs (Imports), Chennai V. Archean Granites Private Limited’ – 2010 (7) TMI 543 - CESTAT, CHENNAI the authorization which has been filed from Committee of Commissioners only authorizes filing of the appeal and filing of the stay petition. It does not authorize the Deputy Commissioner to file the application for condonation of delay. The reason given for the delay is highly unsatisfactory. The Tribunal was of the view that this was not a fit case for condoning the delay in filing the appeal.

DELAY SHOULD BE EXPLAINED SUFFICIENTLY:

In ‘STAR BATTERY LTD. Versus ASSTT. COMMR., C. EX., DANKUNI’ – 2010 (7) TMI 576 - CALCUTTA HIGH COURT there was a delay of 232 days in filing appeal. The appellants submitted before the Tribunal that one of the two directors of company was critically ill and the other Director, the brother of the first Director was looking the affairs of the company. The Tribunal dismissed the application for condonation of delay holding that the company had many personnel and since only one of the two directors was keeping unwell, delay not be condoned. The High Court held that the Tribunal relied only para 5 of the condonation of delay application while unfortunately ignored other paras. The Tribunal has not looked into this aspect. The delay is sufficiently explained. The application did not gain by filing belated appeal. The matter was remanded to the Tribunal with directions to hear condonation of delay application afresh.

In ‘Abdul Sattar Moulvi V. Commissioner of Customs, CSI Airport, Mumbai’ – 2010 (8) TMI 562 - CESTAT, MUMBAI the Tribunal held that at the outset, the reason stated by the appellant in this application remains unsubstantiated. The only reason stated is that the appellant was mentally disturbed and under continuous stress and hence could not pursue the appellate remedy. The ground stated by the appellant for condonation of delay of 30 days has not been substantiated and hence rejected by the Tribunal.

In ‘Commissioner of Central Excise, Chennai – II V. CEGAT, Mumbai; - 2011 (3) TMI 686 - MADRAS HIGH COURT there was a delay of 133 days in filing appeal before the Tribunal. The only ground taken for condonation of delay was inadvertently there was some delay in filing the appeal in respect of the impugned order. It was also pleaded before the Tribunal that the issue involved in the order is pending adjudication in RCP.  

The High Court held that this cannot be a ground to interfere with the order passed by the Tribunal. When jurisdiction is vested with the Tribunal and the appeal is dismissed as time barred, merely because appeal is pending for subsequent year cannot be a ground for condonation of delay.   There was no merit in the writ petition and was dismissed.

In ‘Shaikh Shahnawaz Ali V. Commissioner of Central Excise & Customs’ – 2009 (7) TMI 883 - BOMBAY HIGH COURT the appellants received the impugned order on 29.09.2008. They gave papers to the consultant on 22.12.2008 and appeal was filed on 28.01.2009. Therefore there was some delay in the office or the consultant. The Tribunal rejected the application. The High Court held that once the petitioner had taken steps, failure of consultant ought not to result inj denying the petitioner’s remedy of hearing especially when the delay is only of about 30 days and there is power in the Tribunal to condone the delay.

LACKADAISICAL APPROACH:

In ‘Commissioner of Customs (I), Nhava Sheva V. Vikas Utilities Private Limited’ – 2011 (2) TMI 1149 - CESTAT, MUMBAI the delay in filing appeal by the department is 278 days. The only reason for delay, as per department, is on account of in depth scrutiny of the order-in-original dated 28.5.2008 at various levels and involves administrative procedure. The Tribunal found that in the application it has been stated that the Committee of Commissioners directed appeal to be filed on 16.7.2008 but the same could not be effectively communicated to the appellant Commissioner. It has been further stated that the appeal given by the Committee of Commissioners for filing the appeal was ‘unearthed’ during the periodical scrutiny of the records. The Tribunal held that there cannot constitute sufficient cause for condonation of the heavy delay of the appeal. They only indicate the lackadaisical manner in which important matters, like this, were handled by the department. The Tribunal dismissed the application for delay condonation as well as appeal as time barred.